Citation Nr: 0500350
Decision Date: 01/06/05 Archive Date: 01/19/05
DOCKET NO. 04-20 082 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for asbestosis.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
T. Hal Smith
INTRODUCTION
The veteran served on active duty from January 1947 to
November 1949 and from August 1950 to December 1951.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a March 2003 rating decision of the Department
of Veteran's Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania. In December 2004 the veteran testified at a
personal hearing before the undersigned Veterans Law Judge.
A copy of the transcript of that hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The veteran contends that he is entitled to service
connection for asbestosis as a result of in-service exposure
to asbestosis. Specifically, the veteran states that during
his second period of active service, he was stationed aboard
the USS MONTEREY, the USS CORAL SEA, and the USS MISSOURI.
According to the veteran, he was a pipe fitter and exposed to
asbestosis. The service records available for review
corroborate that he was a pipe fitter and aboard these
vessels.
As to claims of service connection for asbestosis or other
asbestos-related diseases, VA has issued a circular on
asbestos-related diseases. This circular, DVB Circular 21-
88-8, Asbestos-Related Diseases (May 11, 1988) (DVB
Circular), provides guidelines for considering compensation
claims based on exposure to asbestos. The information and
instructions from the DVB Circular were included in a VA
Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para.
7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions
regarding asbestos exposure were amended. The new M21-1
guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct.
3, 1997). The guidelines provide, in part, that the clinical
diagnosis of asbestosis requires a history of exposure and
radiographic evidence of parenchymal disease; that VA is to
develop any evidence of asbestos exposure before, during and
after service; and that a determination must be made as to
whether there is a relationship between asbestos exposure and
the claimed disease, keeping in mind the latency period and
exposure information. See Ashford v. Brown, 10 Vet. App. 120
(1997); McGinty v. Brown, 4 Vet. App. 428 (1993).
In this case, the veteran reported at an October 1980
examination that he had a 15 year history of working in the
mines. He also stated that he worked in construction and as
a carpenter both before and after service. (See transcript
of November 1983 personal hearing.) At a March 1984 personal
hearing, he said that had worked in the mines in 1952 and
1953. VA records in 2002 reflect a 21 year history of
smoking cigarettes.
When filing his claim in January 2003, the veteran reported
that asbestosis was diagnosed in 1994. Treatment records
from 1994 are not of record.
The evidence of record does not reflect that the RO has
requested records of exposure to asbestos in service to be
forwarded to the Navy Medical Liaison Office for
determination of exposure to asbestosis.
To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following:
1. The AMC should review the provisions
of DVB Circular 21-88-8, Asbestos-Related
Diseases (May 11, 1988), as well as VA
Adjudication Procedure Manual M21-1, Part
III, para 5.13 and M21-1, Part VI, para.
7.21 in order to determine if the
veteran's claim for service connection
for an asbestos- related disease has been
properly developed.
2. The AMC should contact the Navy and
request records of exposure to asbestos
for the veteran in his work as a pipe
pitter aboard the vessels mentioned
above. Documents received should then be
forwarded to the Navy Medical Liaison
Office for determination of exposure to
asbestos.
3. After any additional evidence has
been obtained and added to the record,
the AMC should make arrangements with the
appropriate VA medical facility for the
veteran to be afforded a pulmonary
examination to determine the nature and
etiology of any asbestosis. The claims
folder and a copy of this remand must be
made available to the examiner for review
in conjunction with the examination. All
necessary special studies or tests are to
be accomplished, to include testing the
appellant's sputum for evidence of
asbestos fibers, high resolution x-rays
and a computerized tomography scan if
determined by the examiner to be
necessary to obtain a fully informed
diagnosis. After a review of the
examination findings and the entire
evidence of record, the examiner should
render an opinion as to whether the
veteran has asbestosis, or any other
asbestos related lung disorder, and, if
so, whether it is related to his military
service, including any in-service
asbestos exposure (assuming for
examination purposes any response
obtained from the Navy Medical Liaison
Office and/or the accuracy of the
veteran's history). If no such
disability is found, or no link to
military service is found, such findings
and conclusions should be affirmatively
stated and explained, and a complete
rationale for any opinion expressed
should be included in the examination
report. The report prepared should be
typed.
4. The veteran is hereby notified that
it is his responsibility to report for
the examination and to cooperate in the
development of the claim. The
consequences for failure to report for a
VA examination without good cause may
include denial of the claim. 38 C.F.R.
§§ 3.158, 3.655 (2004). In the event
that the veteran does not report for the
aforementioned examination, documentation
should be obtained which shows that
notice scheduling the examination was
sent to the last known address. It
should also be indicated whether any
notice that was sent was returned as
undeliverable.
5. Thereafter, the AMC should review the
claims file and take all other proper
measures to ensure full and complete
compliance with the duty-to-notify and
duty-to-assist provisions of the VCAA.
The AMC should also ensure that the VA
examination report addresses all
questions asked. If it does not, it must
be returned to the examiner for
corrective action.
6. The AMC should then review and re-
adjudicate the issue on appeal. If such
action does not grant the benefit
claimed, the AMC should provide the
veteran and his representative a
supplemental statement of the case (SSOC)
and an appropriate period of time should
be allowed for response. Thereafter, the
case should be returned to this Board for
appellate review.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).